action of the servant, such infection should be considered as an injury by the accident which caused the wound. Albe v. Puth, 37 N. J. L. J. 9. In Newcomb v. Albertson, 89 Atl. 928, the defendant maintained that negligence of the attending physician broke the chain of causation so that the condition complained of was not an injury by accident. The Supreme Court on certiorari refused to pass upon this contention because the trial judge did not find that there was a failure by the physician to take proper precautions and the evidence was not before the higher court. The same defense as that endeavored to be made by the defendant in the foregoing case was successfully made by the defendant in the British case of Della Rocca v. Stanley, Jones & Co., reported in Gordon's W. C. Rep. (1914) at page 34, and unsuccessfully in Harrison v. Ford, 8 B. W. C. C. 429. See burden of proving such a break in chain of causation, Bower v. Meggett (1917) W. C. & I. Rep. 40. Also see page 97 of this book. If the incapacity is the result of the accident the chain of causation remains unbroken although a fresh cause arising casually and uninvited by any special condition of the workman may have aggravated the original injury. Brown v. George Kent, Lim. Gordon's W. C. Rep. (1913) 639. Question as to whether a second operation was to remove a condition due to accident-said that petitioner was negligent in his conduct toward treatment of injured ankle will not alone relieve respondent. Johnson v. Mills, 39 N. J. L. J. 306. Id. Workman Found Dead. Where an employe was found dead, lying under a train of cars, with a hole about six inches in diameter in his abdomen, and there was no proof how his death was caused it was held that a prima facie case of accident had been made out. De Fazio's Estate v. Goldschmidt Detinning Co., 88 Atl. If an employe is found dead and there is no evidence as to how he met his death, the court will presume it was by accident. Steers v. Dunnewald, 89 Atl. 1007, 85 N. J. L. 449, 89 See also page 33. Id. Refusal of Treatment or Operation as Break of Chain of Causation. If an operation is not attended with danger to life and health, or extraordinary suffering, and according to the best medical and surgical opinion, the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him. McNally v. Hudson & Manhattan R. R. Co., 87 N. J. L. 455, 95 Atl. 122, affirmed 88 N. J. L. 729, 96 Atl. 293. In the case last cited the medical testimony was to the effect that the peril of death from an operation for the condition of hernia from which the workman suffered was 48 chances in 23,000. It was held the refusal to submit was not unreasonable and did not release the employer. In Zabory v. Thomson Machine Co., 39 N. J. L. J. 56, it was also held that the workman could not be compelled to submit to operation for hernia. In Stoffa v. Empire Steel & Iron Works, 39 N. J. L. 175 (a hernia case), it was said that reasonable relief for his incapacity must be taken by the workman. In Dolan & Son v. Ward, 8 B. W. C. C. 514, it was held that the county judge was justified in holding that the workman was suffering (if at all) from his own unreasonable refusal to submit to minor operation and not from the accident. Id. Injury While Sleeping. A workman who goes to sleep in the course of his employment and fails to wake up in time to avert a catastrophe sustains an accident. Dixon v. Andrews, 103 Atl. 410. Arising Out of Employment. Must Be Proximate Cause. Whether Employment For an accident to arise out of an employment it has been held not necessary that the employment be the proximate cause of the accident; in the cases so holding it is said to be enough if the employment be a cause in the sense that but for the employment the accident would not have happened. Newcomb v. Albertson, 89 Atl. 928, 85 N. J. L. 435. Terlecki v. Strauss, 85 N. J. L. 454, 89 Atl. 1023, affirmed 86 N. J. L. 708, 92 Atl. 1087. Hanglin v. Swift & Co., 37 N. J. L. J. 81. It should be noted however that there is language in Hulley v. Moosbrugger, 88 N. J. L. 161, 95 Atl. 1007, which seems to indicate that an injury does not arise "Out of" the employment if it cannot be traced to the employment as a contributing proximate cause. Id. Result of Incidental Risk. An accident arises out of the employment when it is something, the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458. Zabriskie v. Erie R. R., 85 N. J. L. 157, 88 Atl. 824, aff'd 86 N. J. L. 266, 92 Atl. 385. Hulley v. Moosbrugger, 88 N. J. L. 161, 95 Atl. 1007. A risk is incidental to an employment when it belongs to or is connected with what the workman has to do in fulfilling his contract; it may be an extraordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment. Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458. An accidental falling down a steep hill by a workman on his way from work at a place which the public had a right to use, was held not the result of a risk incidental to the employment. Williams v. Sir C. G. A. Smith, Gordon's W. C. Rep. (1913) 146. Where there are two routes by which a workman may return to his work, one of which is safe and the other unsafe, in going the unsafe way he accepts an unnecessary risk not incidental to his employment, and his death while so doing does not arise out of the employment. Murray v. Allan Bros. & Co. U. K., Lim., Gordon's W. A risk is not incidental to the employment when it is not due to the nature of the employment, or when it is a new or added peril to which a workman by his own conduct exposes himself, a peril which his contract of service neither directly nor indirectly involves or obliges him to encounter. Panacona v. Vulcanite Portland Cement Co., 37 N. J. Baker v. Bradford (Earl of), 9 B. W. C. C. 436. Where workmen had a long time to the knowledge of their foreman used pails to catch oil dripping from machinery a tacit consent of the employer can be inferred and an injury to a workman while placing the pails to catch the oil happened from an act reasonably incidental to this employment. Panacona v. Vulcanite Portland Cement Co., 37 N. J. The risk of disobedience by a fellow servant is as much one of the risks of the employment as a defect in the appliances. Scott v. Payne Bros., 85 N. J. L. 44, 89 Atl. 927. In Newark Hair & Bi-Products Co. v. Feldman, 89 N. J. L. 504, 99 Atl. 602, it was said that the employer's business was the manufacture of a harmless product and that a certain fire did not originate in his place of business are not determinative factors upon the matter of whether an injury by such fire was by accident arising out of the employment. The important question was said to be whether there was any such danger to be reasonably anticipated by the employer to its employe while at work on the fourth floor from the situation and condition of the premises. It was held that the risk of fire was an incidental risk of the employment in this case. (The employe was a stenographer.) In Rucker v. Read, 39 N. J. L. J. 48, a case in which a domestic servant and housekeeper living in an apartment with a physician on the fifth floor of an apartment house was burned by a fire in the apartment house so that she died in bed as a result thereof, it was held that the risk of fire was incidental to the employment and that accordingly the accident arose out of the employment. In Gregory v. Chapman, 38 N. J. L. J. 363, an assault by an employer which was the result of not only a wordy altercation but one of physical force in which the employe was the aggressor and of which he was the original assailant was held not to have been the result of a risk incidental to the employment. On the contrary the employe's intoxication was the natural and proximate cause of injury. (See also "Assaults," page 26.) Risks Common to Public. Whether the fact that an accident is the result of a risk common to the public will preclude an award has been much discussed in the lower British Courts and has also been passed upon by the House of Lords. The rule seems to be now settled that the fact that the risk is one common to all mankind does not in itself conclusively show that an accident is not out of and in the course of an employment. Simpson v. Sinclair (1917) A. C. 127 at 145. In Dennis v. White & Co. (1917) A. C. 479, Gordon's Workmen's Compensation Reports (1917) 247, more commonly cited W. C. & I. Rep. 247, a House of Lords case, it |